Burris v. Mercer County

Decision Date01 April 2008
Docket NumberNo. WD 67601.,WD 67601.
Citation252 S.W.3d 199
PartiesGerald BURRIS and Jerry Burbridge, Respondents, v. MERCER COUNTY, Missouri, Respondent, Eric Stack, Chad Cain, and Lute Cain, Appellants.
CourtMissouri Court of Appeals

Justin Head, Union, MO, for Appellants.

George E. Proctor, Jr., Liberty, MO, for Respondents.

Before JOSEPH M. ELLIS, P.J., THOMAS H. NEWTON, and LISA WHITE HARDWICK, JJ.

THOMAS H. NEWTON, Judge.

Factual and Procedural Background

Mr. Eric Stack, Mr. Chad Cain, and Mr. Lute Cain (Appellants) appeal the trial court's decision finding that a road had not been abandoned. Appellants own land in Mercer County, Missouri, which they purchased in 2003 for hunting and recreation. To the west of Appellants' land is property owned by Mr. Gerald Burris and Mr. Jerry Burbridge (Respondents). Mr. Burbridge purchased his land in 1994, and Mr. Burris purchased his land in 2003. A road, known by several different names including River Bend Road (road), ran through Appellants' land, and led to the river. At one time a bridge crossed the river, but in the 1950s the bridge was destroyed. Without the road, Respondents' property is landlocked. Most of the witnesses testified that the road was overgrown with brush and trees. Only one of the witnesses, Mr. Kent Donelson, testified that there were no trees in the road.

Mr. Burbridge testified that he had used the road to access his land from 1994 until 2004. His use ended in 2004 when Appellants blocked access by erecting a gate across the entrance to the road. Mr. Burris requested that the county commission reopen the road. The commission informed him that he would need a petition in order for the county to expend funds to open the road. Mr. Burris also testified that he was told that if he spent the money no petition would be needed. He decided to clear the road so that he could get to his land. He hired Mr. Donelson to clear the trees from the road. They started to remove the trees and brush from the road with a bulldozer and had cleared approximately three hundred yards. One of Appellants' neighbors noticed the sound from the bulldozer. He confronted the bulldozer operator, asking him what he was doing and if he knew where the property line was located. In response, the operator contacted Mr. Donelson, and the bulldozing ceased. Shortly thereafter, Appellants retained a lawyer and filed a trespassing complaint with the sheriff's office.

Appellants notified Respondents of the damage to their land. Respondents initiated a declaratory judgment action against Mercer County to declare that the road was an open public road. Appellants later intervened and filed a cross-petition for trespass and damages against Respondents.

The trial court entered judgment declaring the road to be an open public road and denied Appellants' cross-claim. On appeal, Appellants argue that the road was abandoned because it had not been used for five continuous years by the public; the road was impossible to use for more than five continuous years; witnesses testimony proved that the road was abandoned by nonuse for five continuous years; the judgment was against the weight of the evidence because it disregarded Respondents' own testimony, the testimony of numerous witnesses, and the Respondents' stipulation regarding abandonment; the judgment erroneously failed to apply the five year statutory term for abandonment; and the judgment did not adequately describe the road. We affirm the judgment of the trial court.

Standard of Review

The standard of review for a declaratory judgment action is the same as in any other court-tried case, the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Harrison v. DeHeus, 230 S.W.3d 68, 74 (Mo.App. S.D.2007). We will affirm "unless it is against the weight of the evidence, there is insufficient evidence to support it, or it erroneously declares or applies the law." Id. "We accept as true the evidence and reasonable inferences therefrom in favor of the prevailing party and disregard the contrary evidence." Id. We defer to the credibility determinations of the trial court. Id. When there is conflicting evidence, we defer to the trial court, even if the conflicting evidence would support a different conclusion. Id. "One asserting abandonment of a public road must carry the burden of showing such abandonment by clear and cogent proof." Faustlin v. Mathis, 99 S.W.3d 546, 550 (Mo.App. S.D.2003) (citation and quotation marks omitted).

Legal Analysis

"`[V]acations of highways are not favored, and ... the presumption will always be in favor of their continuance.'" Oetting v. Pollock, 189 Mo.App. 263, 175 S.W. 222, 224 (1915)(quoting Kyle v. Bd. of Comm'rs of Kosciusko, County, 94 Ind. 115, 116 (1884)). "`The only limitation upon the abandonment of an established public road is that it must not be done to the injury of the vested rights of abutting owners or persons similarly situated.'" Id. (quoting Johnson v. Rasmus, 237 Mo. 586, 141 S.W. 590, 591 (1911)). In Oetting, the court held that where abandonment will result in the deprivation of the way of ingress and egress to plaintiff's property, the road could not be abandoned. Rather, it could only be vacated by a proceeding held for that purpose, in which the plaintiffs would be allowed to appear and assert their rights. Id. In this case, Respondents' property will become landlocked if the road is deemed abandoned by nonuse. There has been no formal proceeding for vacation of the road, so the only basis Appellants have is abandonment by nonuse, which is inappropriate unless Respondents have acquiesced to the abandonment. Although the court in Oetting went on to analyze abandonment by nonuse in that case, the rule is clearly stated that abandonment by nonuse cannot be accomplished where the public road is the only method of ingress and egress. The remainder of the opinion seems to serve only to show that the trial court's analysis of abandonment for nonuse was incorrect, because the appellate court's treatment of the abandonment issue was not needed to justify reversal.

The dissent cites two pieces of evidence from the record that indicate that Mr. Burbridge's use of the road was permissive, so he did not use the road as a public road. First, after the bulldozer was prevented from clearing the road, Mr. Burbridge encountered Mr. Stack on the property and asked for permission to use the road to get to his property. This was not until 2004, after ten years of use. Second, Mr. Burbridge testified that there had never been any problem with the previous owners accessing his land. He was then asked, "As long as you were hunting?" He replied, "Yes, as long as I was hunting." It does not say that he sought permission. Nor did he say that he had permission, just that the previous owners had never mentioned a problem with him using that portion of land to access his property. This evidence has two equally valid interpretations. First, that Mr. Burbridge used the road and never had any conversation about it with the owners. Second, that he used the road with their permission. Under our standard of review, we make reasonable inferences in favor of the judgment. Therefore, we must interpret the second piece of evidence to indicate that for ten years Mr. Burbridge used the road without obtaining permission from anyone. Thus, any permissive use began in 2004, which did not provide the requisite five years of nonuse.

Furthermore, assuming that any use prior to 2004 was not permissive, Mr. Burbridge's request for permission after the bulldozing incident does not necessarily indicate the he believed he needed permission to use the land. His request could be interpreted as seeking to diffuse a complicated and contentious issue with his neighbor during an ongoing legal dispute and not as an indication that he thought he always needed permission. Mr. Burbridge has not acquiesced to the abandonment of the road for five years because he used the road appropriately without permission until 2004, supporting the finding of public use.

The road was used by the public for five continuous years

In their first two points, Appellants argue that the road was not in public use for five continuous years and that it was impossible for the road to have been used by the public for five continuous years. A public road can be abandoned in one of two ways: through either a formal vacation accomplished by filing a petition, section 228.110,1 or nonuse by the public for five years continuously, section 228.190. Hedges v. County Court for Ray County, 581 S.W.2d 73, 77-78 (Mo.App. W.D.1979).

The trial court found that the road was not abandoned, and citing State ex rel. Perkins v. Taylor, 666 S.W.2d 853, 856 (Mo.App. S.D.1984), the court stated:

The question is not whether any county money or labor has been expended in a given time period, or even that the road may be impassable by all but those walking. Rather, the question to be answered is did the Defendant and/or Third-party Plaintiffs herein show a complete, clear and entire abandonment in which all the public concurs for a five year period.

The trial court continued, stating that the Appellants did not meet their burden of proof in light of the evidence presented at trial, in particular the testimonies of Mr. Burbridge and Mr. Donelson, which the trial court found to be credible. Mr. Burbridge testified that he had used the road to reach his land from 1994 until 2004 when he was denied access. Mr. Donelson testified that the road was maintained and used by him when he farmed ground near this road in the late 1980s. Furthermore, county minutes reflected that there was uncertainty about whether the road had been abandoned, which conflicted with the testimony of many county officials that the road had been abandoned. The trial court noted that although many county officials stated...

To continue reading

Request your trial
8 cases
  • Przybylski v. Barbosa
    • United States
    • Missouri Court of Appeals
    • April 28, 2009
    ... ... Przybylski, Appellants, ... Simon BARBOSA and Louise Mahlandt and Andrew County, Missouri, Respondents ... No. WD 69632 ... Missouri Court of Appeals, Western District ... , section 228.110, or nonuse by the public for five years continuously, section 228.190." Burris v. Mercer County, 252 S.W.3d 199, 202 (Mo.App.2008)(footnote omitted). Here, Plaintiffs never ... ...
  • Newco Atlas v. Park Range Const.
    • United States
    • Missouri Court of Appeals
    • December 16, 2008
    ... ... Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)." Burris v. Mercer County, 252 S.W.3d 199, 201 (Mo.App ... 272 S.W.3d 891 ... W.D.2008). Therefore, ... ...
  • Carmack v. Carmack
    • United States
    • Missouri Court of Appeals
    • June 23, 2020
  • Stonebrook Estates, LLC v. Greene County
    • United States
    • Missouri Court of Appeals
    • December 10, 2008
    ... ... Burris v. Mercer County, 252 S.W.3d 199, 201 (Mo.App. W.D.2008). That means we affirm the judgment unless it is against the weight of the evidence, there is ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT